Waring v. Darnall , 10 G. & J. 126 ( 1838 )

Chambers, Judge,

delivered the opinion of the court.

After a careful examination of the facts in this case, we have not been able to discover in the history they furnish of the trustee’s conduct, such neglect of his duty, as to subject his representatives to the consequences claimed by the appellees.

The propositions of equitable law as to the extent of a trustee’s liability, and the occasions in which it ought to be enforced, are all sound and defensible, as rules applicable to cases arising within their terms.

The difficulty springs from the necessity of considering the peculiarities of each case — upon which must dépend the adaptation of those rules. The vast variety of facts crowded into this record, need not be minutely enumerated, to make intelligible the grounds of our opinion. The parties for whom the trustee acted were of full age at the creation of the trust, perfectly aware of their rights, as well as of the acts of the trustee; and as we think the facts prove, in relation to one item of alleged misconduct, that of selling the Grove Point farm, without additional security, assenting to the transaction. It is not to be understood, that without such assent, we should consider the terms of that sale a violation of the trust. The sale of a farm not deriving its value from any quality or incident which can be totally destroyed, or materially diminished in value, by an accident or contingency, such as the construction, or non-construction of some great public improvement — not liable to change as to its market price, except by the regular course of events, which operate on the agricultural prosperity of the whole country, the sale of such property at a full price, receiving one-sixth of the purchase money in cash before possession is delivered, and retaining the lien on the land as security for the payment of the balance, in six equal instalments, the interest to be paid on the whole sum annually, there being no imputation of fraud, cannot be considered wilful negligence, on which to found a claim against the trustee, for all damages that may afterwards be incurred, especially when the cestui que trusts are of full age, informed that a sale is about to be made, and do not instruct the trustee as to the terms; and, more especially, when by the words of the trust, he is to sell the property on such terms as he shall think best for the interest of the parties concerned. Nor can we discover in the subsequent proceedings of the trustee, the evidences of wilful neglect; one-half of the whole estate was owned and held by a man of active business habits; one-fourth of the other moiety by the trustee himself, whose character as a man of industrious devotion to his pecuniary concerns is proved in the cause. These two persons seem to have acted with discretion and prudence. Lands every where, not these only, had depreciated in value. If this property had been sold on the first default of the purchaser, it would have occasioned an instant cessation to the large annual interest the vendors were receiving, and the proceeds would be largely deficient to meet the balance of the purchase money.

There is no peremptory obligation imposed upon a trustee, (especially when acting with the knowledge and approbation of much the largest portion of those interested,) to sue upon a bond passed to him as truetee, the moment, or the month, or the year it becomes due. A due regard to the ultimate security of the debt, may require him to indulge the debtor, and if contrary to a reasonable expectation, any portion of the debt be lost, in the exercise of a fair discretion, regulated solely by an anxious effort to increase the ultimate security of the debt, the Chancery court will not visit him with the penalty of making good the loss. The interest was regularly paid to the trustee by the purchaser, and by the trustee regularly distributed amongst the persons entitled, until after the year 1825. In that year, and at some period prior to July, as appears by the first letter of Levin Gale, Esq., he had been directed, if not to prosecute suit, at least to adopt such measures as his professional information should suggest. No allegation is made, nor; any proof attempted, that in the selection of counsel the trustee and his associate indicated even a want of judgment, much less a want of inclination to do right. Nor is there the slightest proof, that at any subsequent time they acted in any respect in contradiction to the advice of their counsel, or withheld from him any fact or circumstance which could aid him in forming a sound opinion on their case.

Indeed, the proofs in the case have not shewn, that the parties will necessarily sustain an ultimate loss, by the alleged delay in collecting the purchase money; certainly we can perceive nothing in the course of the trustee’s proceedings which evinces, that such loss, if incurred, will be the •effect of wilful neglect on his part. If any thing has occurred since his death to make the collection of the debt .more doubtful, or more difficult, it cannot, we think, be traced to any delinquency of the trustee in his life-time, and therefore cannot charge his estate.

We agree with the appellee’s counsel, that the eight per cent, commission which was retained by the trustee under the sanction of the Orphans court was greater than it should be, and an account would be directed with instructions to allow 5 per cent, in analogy to the late act of assembly, but it is conceded by the counsel, that even with such reduction, such an account could not make any balance due to the appellees.

For these reasons, the decree of the chancellor is reversed, and the bill of the complainants dismissed, with costs.

decree reversed.